Page:Federal Reporter, 1st Series, Volume 9.djvu/903

 888 FEDERAL REPORTBR. �capitally. Hence, in tins particular, it must be conceded that there was not embraced in the purview of the constitution any offences denominated "capital" exccpt those which might thereafter be so declared by congressional enactment. If this be so, why should a different rule obtain as to the so-called "inf amous crimes " designated in the same amendment ? The rule governing the two should be the same. �If regard is had to the then existing common law and British stat- utes, as fully explained in the cases cited, it may be considered as settled that the treason, felony, and crimenfalsi were inf amous. To every student of legal history it is well known that many offences now considered trivial, comparatively, were in England denominated felonies, and once made capital, while many other and graver crimes were designated misdemeanors, and followed by milder punishments. As at the date of the constitutional amendments it .remained for congress to. name offences and prescribe punishments therefor, is it to be held that every offence by it defined must take either its classification or punishment ex necessitate from the English System, or solely from congressional provisions ? �Originally a felony was an offence which was followed by for- feiture, yet a century ago the English courts repudiated that test, and 80 have the American courts since. It is said that it is not the grade of the punishment, but the nature and quality of the offence, which must determine its classification. If so the rule is very uncer- tain. Many offences comparatively trivial were felonies, and punish- able at common law with death and forfeiture, which at the present time are not felonies or so puniahable either in England or the United States. It must be observed that the constitutional amendment under review does not use the word "felony." True, at common law all felonies were infamous, but as the constitution did not adopt the penal code of the common law, and as consequently there are no common-law crimes against the United States, how does it happen that whatever was in common law a felony cornes to be infamous when an offence of a like nature is declared to be an offence — but not a felony or infamous — against the United States, punishable only as the latter had enaoted. �Although forfeitures ceased to be the consequence of most felonies before the adoption of the United States constitution, yet the designa- tion "felony" remained. Still, are we to hold that all felonies under the United States constitution and statutes are to be held infamous, notwithstanding their position before the law had been essentially ��� �